);

Workers won in this election

by Paul Sonn

The midterm elections this week that handed Democrats control of the House and governorships of swing states showed that voters demanded action to protect workers and rebalance our economy, and provides an action agenda for new state and congressional leaders as we look towards 2020. While the Trump administration was calling the minimum wage a “terrible idea” and trying to roll back the Affordable Care Act, voters turned out for candidates and ballot measures that championed raising wages, expanding health care, and tackling other worker needs.

In Arkansas and Missouri, voters overwhelmingly approved minimum wage increases for nearly a million workers. In Illinois and Wisconsin, fast food workers went door to door to mobilize voters around $15 minimum wage and union rights, helping candidates who backed workers win these key governorships, and putting an end to the punitive reigns of Bruce Rauner and Scott Walker. Furthermore, Democrats running for Congress took back the House majority from Republicans by running on platforms anchored by $15 minimum wage and equal pay for equal work.

Voters turned out nationwide to defend health care for working families, backing candidates who championed the Affordable Care Act and approving Medicaid expansion ballot initiatives in Nebraska, Idaho, and Utah. Overtime pay in particular emerged as a key middle class issue. In Michigan, activists galvanized voters behind Gretchen Whitmer for governor by highlighting the deep opposition to overtime pay and the Republican legislature rollback of prevailing wages for construction workers. In Nevada, Steve Sisolak was elected governor by running ads calling for state action on minimum wage and overtime pay.

With voters demanding action for workers, what does the road ahead look like? In Congress, the House Democrats are expected to provide a badly needed brake on President Trump and his war on workers. Their majority could act quickly to pass $15 minimum wage, overtime pay restoration, and equal pay for equal work, highlighting the Senate Republicans and Trump administration stonewalling these important issues.

But the greatest room for change will still be in the states. Connecticut, Colorado, New Mexico, New York, Minnesota, Nevada, Illinois, and Maine will have new progressive legislative majorities and governors, breaking years of gridlock and clearing the way for action on worker priorities like the minimum wage, paid sick days, and overtime pay. In other states where new progressive governors will still face conservative legislatures, there is still much they can do to begin delivering for workers. For starters, in states including Colorado, Michigan, Wisconsin, Minnesota, Nevada, and Maine, governors can expand overtime pay on their own without need for legislative action, as Pennsylvania and Washington are already doing.

Through their labor agencies, governors across the nation can overhaul and rebuild vital worker protection systems that have seen years of neglect and defunding. These include programs such as wage enforcement, unemployment insurance, and worker health and safety. Governors also have significant economic footprints in the form of their state employment and contracting programs. As other governors are already doing, they can lead by example by extending protections like fair hiring rules and paid sick days, as well as prohibiting inquiry into salary history of state office employees and state contractor employees.

Similarly, they can adopt responsible contracting reforms for their state procurement systems modeled on the fair pay and safe workplaces executive order signed by President Obama last year. By discouraging state agencies from doing business with companies with history of employment and labor violations, or that impose forced arbitration on their employees, governors can ensure that state budgets support high road employers that treat their workers well. The midterm elections underscored that a vision for workers is one that can inspire voters, engage them in campaigns, and make them believe that those in office govern with their best interests at heart. It must be the agenda for action by new state and national leaders as we look towards 2020.

Paul Sonn is director of National Employment Law Project Action Fund.

This article was first published in The Hill.

In The News: Overtime Pay Issue Making Headlines in 2018 Campaign Coverage

Heading into the midterm elections in key states across the country, efforts by Republican attorneys general to block overtime pay protections for millions of workers emerge as a fair pay issue in 2018 campaigns.

 

Ohio: Overtime pay for mid-level workers becoming key issue in governor’s race – Springfield News-Sun (October 26, 2018)

In May 2016, Vice President Joe Biden dropped into Columbus to tout a federal new rule: overtime pay would be required for salaried workers who make up to $47,476 a year. The change was expected to boost the paychecks of 4.2 million Americans who work as mid-level managers in places such as big box stores, restaurants and the like.

In September 2016, Ohio Attorney General Mike DeWine joined a lawsuit with 21 state attorneys general to block the regulation, which business groups loathed. The suit was successful.

The overtime regulation is now a central issue in the Ohio governor’s race.

Democrat Richard Cordray is citing analysis from a liberal think tank, Innovation Ohio, that says 327,000 Ohio workers are missing out on $42 million in overtime and raises. The Columbus Dispatch rated a Cordray attack ad on the issue as accurate.

Read the full story

Nevada: Report: Laxalt, Duncan cost Nevadans $8 million in overtime – Nevada Current (September 14, 2018)

Nevada workers who earn between roughly $24,000 and $48,000 annually are losing out on $8 million a year in overtime wages, according to a new report. The report from the National Employment Law Project Action Fund blames gubernatorial candidate Attorney General Adam Laxalt and Laxalt’s former deputy, Wes Duncan, who hopes to replace him, for leading a national charge to block rules that would have expanded overtime eligibility.

The report says 104,000 Nevadans would have been eligible to be compensated for working overtime and that about 40,000 of those are currently working overtime without compensation.

The report urges Nevada lawmakers to update the overtime rules.

“In particular, under Nevada law, the governor, acting through the Nevada Labor Commissioner, has the power to update overtime pay on his or her own without need for action by the legislature,” the report says. “Governors in Pennsylvania and Washington State are already doing so.”

Read the full story

Michigan: Report: Michigan workers lose $37M annually due to federal overtime exemptions – UpNorthLive (September 13, 2018)

A new report claims Michigan workers are not getting paid $37 million annually, due to current federal laws for overtime payments for salaried employees.

The National Employment Law Project (NELP) Action, a workers’ rights nonprofit, released a report detailing 271,000 workers in Michigan did not get paid for their overtime work, based off data from the U.S. from the Bureau of Labor Statistics’ Quarterly Census of Employment and Wages (QCEW), the Economic Policy Institute and the Current Population Survey.

The NELP Action report said, “this overtime pay raise was blocked in Michigan and nationwide as the result of a lawsuit brought by Michigan Attorney General Bill Schuette.”

NELP Action put us in contact with ‘Julia’, a West Michigan retail manager who requested to stay anonymous for fear of retaliation from her employer. Julia said because she’s a manager in her store, and makes roughly $45,000 a year, her employer does not pay overtime.

“The most I’ve ever worked in a week is 102 hours and I’m exhausted,” she said.

She said if Michigan laws were changed, her employer would be forced to pay her for her overtime or, “Hire someone else to do the extra work I’m doing.”

Because she regularly works more than 50 hours a week, she said she can’t set money aside.

“If my overtime would have been paid, I would have been able to pay down my bills, even save for the future,” Julia said.

Read the full story

Wisconsin: Schimel Suit Cost Workers $23 Million – Suit he joined stopped 165,000 Wisconsin workers from getting overtime pay. – Urban Milwaukee (October 9, 2018)

In Wisconsin, as a new study by the NELP Action Group found, there are a 165,000 workers who would have benefitted, including 23,000 in Milwaukee County, 14,000 in Madison and Dane County and 8,500 in Green Bay and Brown County. Those workers would have earned a combined total of $23 million additional, from the Fall of 2016, when the rule was scheduled to go into effect, until now — almost totaling $46 million by now.

“A typical worker who lost out on expanded overtime pay was an assistant manager at a big-box retail store or a restaurant chain who earns $25,000 to $45,000 a year,” the report noted. “Other affected workers include low-level, low-paid managers at banks, health insurance companies, and a wide range of other types of businesses.”

It’s a huge loss for the state’s middle class, which has been falling behind the wealthiest residents in annual income for decades. And it’s a loss most residents oppose, as a poll by NELP found 81 percent of Wisconsin voters support an overtime pay requirement.

Read the full story

Analysis of How Much Wisconsin Workers Are Losing Under Brad Schimel and Scott Walker’s Overtime Pay Cut

While Wisconsin’s economy is growing, working families across the state are struggling, squeezed between flat paychecks and the rising cost of necessities. One factor dragging down paychecks is the erosion of overtime pay. The salary level below which workers are guaranteed overtime pay when they work more than 40 hours a week has not been updated in years, causing the share of salaried middle-class workers automatically eligible for overtime to plummet from 62 percent in 1975 to less than 7 percent today. [1]

Executive Summary

In 2016, the U.S. Department of Labor ordered a long overdue update to restore overtime pay protections to middle-class workers earning less than about $48,000 a year. However, this overtime pay raise was blocked in Wisconsin and nationwide as the result of a lawsuit brought by Wisconsin Attorney General Brad Schimel with the support of Governor Scott Walker. As a result of the lawsuit, hundreds of thousands of Wisconsinites lost out on overtime pay rights.

This report provides data for the first time on the local impact on Wisconsin workers of Attorney General Schimel’s action blocking this middle-class raise. Starting with state-level data available from the Economic Policy Institute, the report breaks down the impact, county by county.

 

The key findings include the following:

  • Statewide, 165,000 Wisconsinites lost overtime pay protections as a result of the lawsuit.
  • Workers in every county across the state lost overtime protections, including 23,000 in Milwaukee County, 14,000 in Dane County, and 8,500 in Green Bay’s Brown County.
  • Smaller communities also saw significant impacts, including about 6,400 in Appleton’s Outagamie County, 4,700 in La Crosse County, 4,600 in Oshkosh’s Winnebago County, 4,500 in Wassau’s Marathon County, 4,500 in Kenosha County, 3,900 in Eau Claire County, and 1,100 in Douglas County in the Superior/Duluth area.
  • As a result, this year and every year Wisconsin workers are losing $23 million in overtime raises. That’s $23 million in badly needed higher pay that workers across the state are losing ever year because of the lawsuit brought by Schimel to block the overtime raise that Walker also opposed.
  • In other states, including California, New York, Washington State, and Pennsylvania, governors and state legislatures are responding to the blocked federal overtime pay expansion by acting under state law to deliver this raise.
  • Wisconsin’s governor and legislature should follow those states’ lead and act quickly to deliver this badly needed overtime raise for the state’s workers.
  • In particular, under Wisconsin law, the governor, acting through the Wisconsin Department of Workforce Development, has the power to update overtime pay on his or her own without need for action by the legislature. Governors in Pennsylvania and Washington State are already doing so.
  • Past polling found that Wisconsin voters support an overtime pay expansion by an overwhelming 81 to 14 percent margin.

 

This report provides background on the overtime pay issue, presents the data on the impact across the state of blocking the overtime pay raise, and explains how Wisconsin’s governor or legislature can act to finally make these overtime raises happen.

  1. Background on the Lawsuit Blocking the Federal Overtime Pay Restoration

Despite a growing economy and record corporate profits and CEO pay, paychecks for most of the workforce are barely keeping up with the rising cost of living.[2] One of the reasons is eroding pay protections, including those for overtime pay.

It used to be that if you worked more than 40 hours a week, your employer would pay you time-and-a-half for those extra hours. There was an exemption for managers and professional employees, but only for workers who were both highly paid above a salary threshold and had specific management responsibilities or professional roles. Those protections ensured that most workers didn’t have to work excessive hours—and that if they did, they would receive extra pay to make up for it.

Back in 1975, the overtime salary threshold for that exemption was the equivalent of $61,200 a year, and 62 percent of salaried workers in the U.S. were automatically eligible for overtime pay.[3] Today, the level has plummeted to less than 7 percent because the salary threshold has been frozen at just $23,660 since 2004.[4] As a result, many low-paid employees like assistant managers at fast-food restaurants, retail stores, health insurance companies and the like who struggle on salaries of $25,000 to $45,000 a year aren’t eligible for overtime and can be forced to work 50, 60, or even 70 hours a week for no extra pay.

In 2016, the U.S. Department of Labor updated the overtime salary threshold to $47,476 a year—a moderate increase that would not even have fully restored overtime to the 62 percent of salaried workers who used to receive it.[5]

But a group of 21 state attorneys general, including Wisconsin’s Brad Schimel, sued and blocked this middle-class pay raise for their own constituents.[6] Scott Walker also vocally opposed the overtime pay raise and called for its repeal as part of his platform of labor “reforms.”[7]

While legal experts and even the Trump Administration believed the court’s ruling was erroneous and was likely to be reversed on appeal,[8] the administration announced in 2017 that the U.S. Department of Labor would rewrite the blocked overtime rule, most likely rolling back this long overdue pay raise and replacing it with weaker protections for fewer workers.[9] In September 2018, the Trump Labor Department scheduled a series of “listening sessions” as part of this effort to revise the rule and substitute weaker protections for fewer workers.[10]

Despite the rollback of the overtime restoration by Schimel, with Walker’s support, employer surveys show that 50 percent or more of national companies, including major retailers, restaurant chains, and banks, have already adopted the higher, updated overtime standards and adjusted their pay scales.[11] That shows that restoring overtime pay is economically realistic and would not entail a burdensome transition for businesses.

 

  1. The Impact of the Blocked Overtime Pay Restoration in Wisconsin—and the Benefits of Finally Delivering It

In this report we use state-level data from the Economic Policy Institute, the Bureau of Labor Statistics, and the U.S. Census Bureau to analyze for each county across Wisconsin how many workers lost overtime pay as a result of Schimel and Walker’s blocking the U.S. Labor Department’s overtime pay restoration—and how many would regain those protections if Wisconsin’s governor and/or legislature act to deliver this long overdue raise.

As summarized in Table 1, the data show that a total of 165,000 workers across Wisconsin lost overtime pay as a result of the Schimel lawsuit.

WISCONSIN Workers Who Lost Stronger Overtime Pay Protections:
164,795

Workers in every county across the state lost overtime protections, including 23,000 in Milwaukee County, 14,000 in Dane County, and 8,500 in Green Bay’s Brown County. Smaller communities also saw significant impacts, including about 6,400 in Appleton’s Outagamie County, 4,700 in La Crosse County, 4,600 in Oshkosh’s Winnebago County, 4,500 in Wassau’s Marathon County, 4,500 in Kenosha County, 3,900 in Eau Claire County, and 1,100 in Douglas County in the Superior/Duluth area. See Table 1.

A typical worker who lost out on expanded overtime pay was an assistant manager at a big-box retail store or a restaurant chain who earns $25,000 to $45,000 a year. Other affected workers include low-level, low-paid managers at banks, health insurance companies, and a wide range of other types of businesses.

These workers, of which there are many thousands in Wisconsin, would have had overtime pay restored under the 2016 U.S. Labor Department expansion if Schimel had not blocked it in court.

As Table 2 details, as a result, this year and every year Wisconsin workers are losing $23 million in overtime raises. That’s $23 million in badly needed higher pay that workers across the state are losing ever year because of the lawsuit brought by Schimel to block the overtime raise that Walker also opposed.

That figure for total lost pay combines projections for two types of lost raises.  The first is the total of estimated unpaid overtime hours being worked each year by workers who would have been covered under the updated overtime protections.  The second consists of estimated raises for workers whose employers would likely have raised their salaries up to the level of the new overtime threshold in order to keep them exempt from overtime requirements.

 

  1. Wisconsin’s Governor and Legislature Should Follow the Lead of Other States and Act Quickly to Deliver the Long Overdue Middle-Class Overtime Raise

In other states, including Pennsylvania, Washington State, California and New York, governors and state legislatures are responding to the blocked federal overtime pay expansion by acting under state law to deliver this raise. For example, Pennsylvania Governor Tom Wolf[12] and Washington State Governor Jay Inslee[13] this year both directed their state labor departments to update their overtime regulations to expand overtime pay—a process that is now underway in both states. California’s overtime salary threshold is already in the process of increasing to $62,400 a year by 2022.[14] And New York’s overtime salary threshold is increasing to $58,500 a year by late 2021 in the suburbs and by late 2018 in New York City, and by a date still to be determined in the reminder of the state.[15]

Wisconsin’s governor and legislature should follow those states’ lead and act quickly to deliver this badly needed overtime raise for the state’s workers. In particular, under Wisconsin law, the governor, acting through the Wisconsin Department of Workforce Development, may update the applicable overtime pay rules on his or her own without need for action by the legislature.[16] Wisconsin’s governor thus has the power to deliver the long overdue overtime raise, as governors are currently doing in Pennsylvania and Washington State.

Alternatively, the Wisconsin legislature also has the power to expand overtime pay. Past polling found that Wisconsin voters support an overtime pay expansion by an overwhelming 81 to 14 percent margin.[17]

Updating Wisconsin’s overtime rules would finally deliver this long overdue raise for 165,000 or more middle-class workers across the state.

 

Tables     

 

 

Appendix: About the Data

The analysis in this report was prepared with data available from the Economic Policy Institute (EPI), and draws on state-level analyses by EPI of the impact of the 2016 U.S. Department of Labor overtime raise. Beginning with EPI’s estimates of statewide worker impact and its estimates of overtime pay lost annually, the analysis then used data from the Bureau of Labor Statistics’ Quarterly Census of Employment and Wages and the Current Population Survey to update those estimates to the present, and to estimate county-level impacts.

Endnotes

[1]        Economic Policy Institute, What’s at stake in the states if the 2016 federal raise to the overtime pay threshold is not preserved—and what states can do about it (Nov. 15, 2017), available at:  https://www.epi.org/publication/whats-at-stake-in-the-states-if-the-2016-federal-raise-to-the-overtime-pay-threshold-is-not-preserved/

[2]        “In U.S., wage growth is being wiped out entirely by inflation,” Washington Post (August 10, 2018), available at: https://www.washingtonpost.com/business/2018/08/10/america-wage-growth-is-getting-wiped-out-entirely-by-inflation/?utm_term=.364004afa05d

[3]        Economic Policy Institute, What’s at stake in the states if the 2016 federal raise to the overtime pay threshold is not preserved—and what states can do about it

[4]        Ibid.

[5]        “White Increases Overtime Eligibility by Millions,” New York Times (May 17, 2018), available at: https://www.nytimes.com/2016/05/18/business/white-house-increases-overtime-eligibility-by-millions.html

[6]        “Wisconsin joins 20 states to challenge federal overtime rule,” Capital Times (Sept. 20, 2016), available at: https://madison.com/ct/news/local/govt-and-politics/election-matters/wisconsin-joins-states-to-challenge-federal-overtime-rule/article_1c7808a3-bad2-50f1-a388-e575fa84f8ea.html

[7]        “Scott Walker wants every state to be a right-to-work state,” Washington Post (September 14, 2015), available at: https://www.washingtonpost.com/news/post-politics/wp/2015/09/14/scott-walker-wants-every-state-to-be-a-right-to-work-state/?utm_term=.479bff6b4b4b

[8]        “Labor Department to Appeal Court Ruling Striking Down Obama-Era Overtime-Pay Rule; Trump administration remains likely to significantly change regulations,” Wall Street Journal (Oct. 27, 2017), available at: https://www.wsj.com/articles/labor-department-to-appeal-court-ruling-striking-down-obama-era-overtime-rule-1509141625 See also Brief for Defendant-Appellant, Nevada v. U.S. Dep’t of Lab. No. 16-41606 (5th Cir. June 30, 2017).

[9]        ”Labor Department to Start Process of Revising Overtime Rule,” Wall Street Journal (July 25, 2017), available at: https://www.wsj.com/articles/labor-department-to-start-process-of-revising-overtime-rule-1501002130?mod=article_inline

[10]       U.S. Department of Labor, “White Collar Exemption Regulations; Public Listening Sessions,” 83 Federal Register 43825 (Aug. 28, 2018), available at: https://www.federalregister.gov/documents/2018/08/28/2018-18649/white-collar-exemption-regulations-public-listening-sessions

[11]       “The State and Fate of Overtime, ComplianceHR (Oct. 27, 2017), available at: http://event.lvl3.on24.com/event/15/06/73/3/rt/1/documents/resourceList1507125242509/web__chr__1004__final.pdf

[12]       “Pa. proposal would boost overtime for half a million workers,” Philadelphia Inquirer (June 26, 2018), available at http://www2.philly.com/philly/blogs/inq-phillydeals/overtime-labor-employment-trump-wolf-pennsylvania-overtime-20180626.html

[13]       Washington State Dep’t of Labor & Industries, Overtime EAP Rulemaking, available at https://lni.us.engagementhq.com/learn-about-eap-exemptions

[14]       “California’s Exempt Salary Threshold Will Rise Regardless of Blocked Overtime Rule,” Society for Human Resource Management (Dec. 15, 2016), available at  https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/overtime-california-employers.aspx

[15]       New York’s overtime salary threshold for the Executive and Administrative Exemption is increasing to $1,125 a week, which is $58,500 a year. See New York State Department of Labor, Miscellaneous Industry Wage Order Summary, available at: https://labor.ny.gov/formsdocs/wp/Part142.pdf ; New York State Department of Labor, Hospitality Industry Wage Order Summary, available at: https://labor.ny.gov/formsdocs/wp/Part146.pdf

[16]       Wisconsin’s overtime rules are established in large part by regulation, and exempt “persons whose primary duty consists of executive, administrative, or professional work.”  Wis. Admin. Code DWD 274.04. While the department’s current regulations defining those terms incorporate a $700 a week salary threshold, the governor and commissioner could update the regulations to raise the threshold.

[17]       Public Policy Polling, Wisconsin Survey Results (Aug. 26-28, 2016), available at: http://nelpaction.org/wp-content/uploads/2018/09/Wisconsin-Public-Policy-Survey-Results-Aug-2016.pdf

DOWNLOAD WI OVERTIME PAY DATA BRIEF

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Analysis of How Much Nevada Workers Are Losing Under Attorney General Adam Laxalt and Wes Duncan’s Overtime Pay Cut

While Nevada’s economy is growing, working families across the state are struggling, squeezed between flat paychecks and the rising cost of necessities. One factor dragging down paychecks is the erosion of overtime pay. The salary level below which workers are guaranteed overtime pay when they work more than 40 hours a week has not been updated in years, causing the share of salaried middle-class workers automatically eligible for overtime to plummet from 62 percent in 1975 to less than 7 percent today. [1]

Executive Summary

In 2016, the U.S. Department of Labor ordered a long overdue update to restore overtime pay protections to middle-class workers earning less than about $48,000 a year. However, this overtime pay raise was blocked in Nevada and nationwide as the result of a lawsuit brought by Nevada Attorney General Adam Laxalt and First Deputy Attorney General Wes Duncan. As a result of the lawsuit, tens of thousands of Nevadans lost out on overtime pay rights.

This report provides data for the first time on the local impact on Nevada workers of Attorney General Laxalt and First Deputy Duncan’s action blocking this middle-class raise. Starting with state-level data available from the Economic Policy Institute, the report breaks down the impact, county by county.

 

The key findings include:

  • Statewide, 104,000 Nevadans lost overtime pay protections as a result of Laxalt and Duncan’s lawsuit.
  • Workers in every county across the state lost overtime protections, including 78,000 workers in Clark County and 16,000 workers in Washoe County.
  • Smaller communities still saw significant impacts, including 1,900 workers in Carson City, 1,700 in Douglas County, 1,600 in Elko County and 1,100 workers in Lyon County.
  • As a result, this year and every year Nevada workers are losing $8 million in overtime raises. That’s $8 million in badly needed higher pay that workers across the state are losing ever year because of the lawsuit brought by Laxalt and Duncan to block the overtime raise.
  • In other states, including California, New York, Washington State, and Pennsylvania, governors and state legislatures are responding to the blocked federal overtime pay expansion by acting under state law to deliver this raise.
  • Nevada’s next governor and new legislature should follow those states’ lead and act quickly to deliver this badly needed overtime raise for the state’s workers.
  • In particular, under Nevada law, the governor, acting through the Nevada Labor Commissioner, has the power to update overtime pay on his or her own without need for action by the legislature. Governors in Pennsylvania and Washington State are already doing so.

 

This report provides background on the overtime pay issue, presents the data on the impact across the state of blocking the overtime pay raise, and explains how Nevada’s governor and legislature can act to finally make these overtime raises happen.

 

  1. Background on the Lawsuit Blocking the Federal Overtime Pay Restoration

Despite a growing economy and record corporate profits and CEO pay, paychecks for most of the workforce are barely keeping up with the rising cost of living.[2] One of the reasons is eroding pay protections, including those for overtime pay.

It used to be that if you worked more than 40 hours a week, your employer would pay you time-and-a-half for those extra hours. There was an exemption for managers and professional employees, but only for workers who were both highly paid above a salary threshold and had specific management responsibilities or professional roles. Those protections ensured that most workers didn’t have to work excessive hours—and that if they did, they would receive extra pay to make up for it.

Back in 1975, the overtime salary threshold for that exemption was the equivalent of $61,200 a year, and 62 percent of salaried workers in the U.S. were automatically eligible for overtime pay.[3] Today, the level has plummeted to less than 7 percent because the salary threshold has been frozen at just $23,660 since 2004.[4] As a result, many low-paid employees like assistant managers at fast-food restaurants, retail stores, health insurance companies and the like who struggle on salaries of $25,000 to $45,000 a year aren’t eligible for overtime and can be forced to work 50, 60, or even 70 hours a week for no extra pay.

In 2016, the U.S. Department of Labor updated the overtime salary threshold to $47,476 a year—a moderate increase that would not even have fully restored overtime to the 62 percent of salaried workers who used to receive it.[5]

But a group of 21 state attorneys general, led by Nevada’s Adam Laxalt and his deputy Wes Duncan, sued and blocked this middle-class pay raise for their own constituents.[6]

While legal experts and even the Trump Administration believed the court’s ruling was erroneous and was likely to be reversed on appeal,[7] the administration announced in 2017 that the U.S. Department of Labor would rewrite the blocked overtime rule, most likely rolling back this long overdue pay raise and replacing it with weaker protections for fewer workers.[8] In September 2018, the Trump Labor Department scheduled a series of “listening sessions” as part of this effort to revise the rule and substitute weaker protections for fewer workers.[9]

Despite the rollback of the overtime restoration by Laxalt and Duncan, employer surveys show that 50 percent or more of national companies, including major retailers, restaurant chains, and banks, have already adopted the higher, updated overtime standards and adjusted their pay scales.[10] That shows that restoring overtime pay is economically realistic and would not entail a burdensome transition for businesses.

 

  1. The Impact of the Blocked Overtime Pay Restoration in Nevada—and the Benefits of Finally Delivering It

In this report we use state-level data available from the Economic Policy Institute, the Bureau of Labor Statistics, and the U.S. Census Bureau to analyze for each county across Nevada how many workers lost overtime pay as a result of Laxalt and Duncan’s  blocking the U.S. Labor Department’s overtime pay restoration—and how many would regain those protections if Nevada’s governor and/or legislature act to deliver this long overdue raise.

As summarized in Table 1, the data show that a total of 104,000 workers across Nevada lost overtime pay as a result of the Laxalt and Duncan lawsuit.

Workers in every county across the state lost overtime protections, including 78,000 workers in Clark County and 16,000 workers in Washoe County. Smaller communities still saw significant impacts, including 1,900 workers in Carson City, 1,700 in Douglas County, 1,600 in Elko County and 1,100 workers in Lyon County. See Table 1.

A typical worker who lost out on expanded overtime pay was an assistant manager at a big-box retail store or a restaurant chain who earns $25,000 to $45,000 a year. Other affected workers include low-level, low-paid managers at banks, health insurance companies, and a wide range of other types of businesses.

These workers, of which there are many thousands in Nevada would have had overtime pay restored under the 2016 U.S. Labor Department expansion if Laxalt and Duncan had not blocked it in court.

As Table 2 details, as a result, this year and every year Nevada workers are losing $8 million in overtime raises. That’s $8 million in badly needed higher pay that workers across the state are losing ever year because of the lawsuit brought by Laxalt and Duncan to block the overtime raise.

That figure for total lost pay combines projections for two types of lost raises.  The first is the total of estimated unpaid overtime hours being worked each year by workers who would have been covered under the updated overtime protections.  The second consists of estimated raises for workers whose employers would likely have raised their salaries up to the level of the new overtime threshold in order to keep them exempt from overtime requirements.

 

  1. Nevada’s Governor and Legislature Should Follow the Lead of Other States and Act Quickly to Deliver the Long Overdue Middle-Class Overtime Raise

In other states, including Pennsylvania, Washington State, California and New York, governors and state legislatures are responding to the blocked federal overtime pay expansion by acting under state law to deliver this raise. For example, Pennsylvania Governor Tom Wolf[11] and Washington State Governor Jay Inslee[12] this year both directed their state labor departments to update their overtime regulations to expand overtime pay—a process that is now underway in both states. California’s overtime salary threshold is already in the process of increasing to $62,400 a year by 2022.[13] And New York’s overtime salary threshold is increasing to $58,500 a year by late 2021 in the suburbs and by late 2018 in New York City, and by a date still to be determined in the reminder of the state.[14]

NEVADA Workers Who Lost Stronger Overtime Pay Protections:

104,339

Updating Nevada’s overtime rules would finally deliver this long overdue raise for 104,000 or more middle-class workers across the state.Nevada’s governor and legislature should follow those states’ lead and act quickly to deliver this badly needed overtime raise for the state’s workers. In particular, under Nevada law, the governor, acting through the Nevada Labor Commissioner, may update the applicable overtime pay rules on his or her own without need for action by the legislature.[15] Nevada’s governor thus has the power to deliver the long overdue overtime raise, as governors are currently doing in Pennsylvania and Washington State. Alternatively, the Nevada legislature also has the power to expand overtime pay.

 

Tables

 

 

 

Appendix: About the Data

The analysis in this report was prepared with data available from the Economic Policy Institute (EPI), and draws on state-level analyses by EPI of the impact of the 2016 U.S. Department of Labor overtime raise. Beginning with EPI’s estimates of statewide worker impact and its estimates of overtime pay lost annually, the analysis then used data from the Bureau of Labor Statistics’ Quarterly Census of Employment and Wages and the Current Population Survey to update those estimates to the present, and to estimate county-level impacts.

 

Endnotes

[1]           Economic Policy Institute, What’s at stake in the states if the 2016 federal raise to the overtime pay threshold is not preserved—and what states can do about it (Nov. 15, 2017), available at:  https://www.epi.org/publication/whats-at-stake-in-the-states-if-the-2016-federal-raise-to-the-overtime-pay-threshold-is-not-preserved/

[2]           “In U.S., wage growth is being wiped out entirely by inflation,” Washington Post (August 10, 2018), available at: https://www.washingtonpost.com/business/2018/08/10/america-wage-growth-is-getting-wiped-out-entirely-by-inflation/?utm_term=.364004afa05d

[3]           Economic Policy Institute, What’s at stake in the states if the 2016 federal raise to the overtime pay threshold is not preserved—and what states can do about it

[4]           Ibid.

[5]           “White Increases Overtime Eligibility by Millions,” New York Times (May 17, 2018), available at: https://www.nytimes.com/2016/05/18/business/white-house-increases-overtime-eligibility-by-millions.html

[6]           Office of the Nevada Attorney General, Press Release, Nevada Attorney General Adam P. Laxalt Applauds Ruling Permanently Invalidating Obama-Era Overtime Rule (Aug. 31, 2017), available at: http://ag.nv.gov/News/PR/2017/Nevada_Attorney_General_Adam_P__Laxalt_Applauds_Ruling_Permanently_Invalidating_Obama-Era_Overtime_Rule/

[7]           “Labor Department to Appeal Court Ruling Striking Down Obama-Era Overtime-Pay Rule; Trump administration remains likely to significantly change regulations,” Wall Street Journal (Oct. 27, 2017), available at: https://www.wsj.com/articles/labor-department-to-appeal-court-ruling-striking-down-obama-era-overtime-rule-1509141625 See also Brief for Defendant-Appellant, Nevada v. U.S. Dep’t of Lab. No. 16-41606 (5th Cir. June 30, 2017).

[8]           ”Labor Department to Start Process of Revising Overtime Rule,” Wall Street Journal (July 25, 2017), available at: https://www.wsj.com/articles/labor-department-to-start-process-of-revising-overtime-rule-1501002130?mod=article_inline

[9]           U.S. Department of Labor, “White Collar Exemption Regulations; Public Listening Sessions,” 83 Federal Register 43825 (Aug. 28, 2018), available at: https://www.federalregister.gov/documents/2018/08/28/2018-18649/white-collar-exemption-regulations-public-listening-sessions

[10] “The State and Fate of Overtime, ComplianceHR (Oct. 27, 2017), available at: http://event.lvl3.on24.com/event/15/06/73/3/rt/1/documents/resourceList1507125242509/web__chr__1004__final.pdf

[11] “Pa. proposal would boost overtime for half a million workers,” Philadelphia Inquirer (June 26, 2018), available at http://www2.philly.com/philly/blogs/inq-phillydeals/overtime-labor-employment-trump-wolf-pennsylvania-overtime-20180626.html

[12] Washington State Dep’t of Labor & Industries, Overtime EAP Rulemaking, available at https://lni.us.engagementhq.com/learn-about-eap-exemptions

[13] “California’s Exempt Salary Threshold Will Rise Regardless of Blocked Overtime Rule,” Society for Human Resource Management (Dec. 15, 2016), available at https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/overtime-california-employers.aspx

[14]         New York’s overtime salary threshold for the Executive and Administrative Exemption is increasing to $1,125 a week, which is $58,500 a year. See New York State Department of Labor, Miscellaneous Industry Wage Order Summary, available at: https://labor.ny.gov/formsdocs/wp/Part142.pdf ; New York State Department of Labor, Hospitality Industry Wage Order Summary, available at: https://labor.ny.gov/formsdocs/wp/Part146.pdf

[15]         Nev. Rev. Stat. Ann. § 608.018(3)(d) exempts “employees who are employed in in bona fide executive, administrative, or professional capacities” from overtime pay. The commissioner’s current regulations, Nev. Admin Code 608.125(c), instruct that “the Commissioner will refer to [the U.S. DOL’s overtime exemption] 29 C.F.R. §§ 541.1 and 541.2 to determine if an employee is employed in a bona fide executive or administrative capacity.” However, the governor and commissioner could update the regulations to delink them from the federal standard and adopt a higher salary threshold.

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Analysis of How Much Ohio Workers Are Losing Under Attorney General Mike DeWine’s Overtime Pay Cut

While Ohio’s economy is growing, working families across the state are struggling, squeezed between flat paychecks and the rising cost of necessities. One factor dragging down paychecks is the erosion of overtime pay. The salary level below which workers are guaranteed overtime pay when they work more than 40 hours a week has not been updated in years, causing the share of salaried middle-class workers automatically eligible for overtime to plummet from 62 percent in 1975 to less than 7 percent today. [1]

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Executive Summary

In 2016, the U.S. Department of Labor ordered a long overdue update to restore overtime pay protections to middle-class workers earning less than about $48,000 a year. However, this overtime pay raise was blocked in Ohio and nationwide as the result of a lawsuit brought by Ohio Attorney General Mike DeWine. As a result of the lawsuit, hundreds of thousands of Ohioans lost out on overtime pay rights.

This report provides data for the first time on the local impact on Ohio workers of Attorney General DeWine’s action blocking this middle-class raise. Starting with state-level data available from the Economic Policy Institute, the report breaks down the impact, county by county.

 

The key findings include:

  • Statewide, 327,000 Ohioans lost overtime pay protections as a result of the lawsuit.
  • Workers in every county across the state lost overtime protections. The largest impacts were 37,000 workers in Franklin County, 34,000 in Cuyahoga County, and 22,000 in Hamilton County.
  • Other major impacts include 17,000 in Montgomery County, 16,000 workers in Summit County, 13,000 in Lucas County, and 13,000 in Stark County.
  • As a result, this year and every year Ohio workers are losing $42 million in overtime raises. That’s $42 million in badly needed higher pay that workers across the state are losing ever year because of the lawsuit brought by DeWine to block the overtime raise.
  • In other states, including California, New York, Washington State, and Pennsylvania, governors and state legislatures are responding to the blocked federal overtime pay expansion by acting under state law to deliver this raise.
  • Ohio’s governor and legislature should follow those states’ lead and act quickly to deliver this badly needed overtime raise for the state’s workers.
  • Past polling found that Ohio voters support an overtime pay expansion by an overwhelming 80 to 14 percent margin.

 

This report provides background on the overtime pay issue, presents the data on the impact across the state of blocking the overtime pay raise, and explains how Ohio’s governor and legislature can act to finally make these overtime raises happen.

 

  1. Background on the Lawsuit Blocking the Federal Overtime Pay Restoration

Despite a growing economy and record corporate profits and CEO pay, paychecks for most of the workforce are barely keeping up with the rising cost of living.[2] One of the reasons is eroding pay protections, including those for overtime pay.

It used to be that if you worked more than 40 hours a week, your employer would pay you time-and-a-half for those extra hours. There was an exemption for managers and professional employees, but only for workers who were both highly paid above a salary threshold and had specific management responsibilities or professional roles. Those protections ensured that most workers didn’t have to work excessive hours—and that if they did, they would receive extra pay to make up for it.

Back in 1975, the overtime salary threshold for that exemption was the equivalent of $61,200 a year, and 62 percent of salaried workers in the U.S. were automatically eligible for overtime pay.[3] Today, the level has plummeted to less than 7 percent because the salary threshold has been frozen at just $23,660 since 2004.[4] As a result, many low-paid employees like assistant managers at fast-food restaurants, retail stores, health insurance companies and the like who struggle on salaries of $25,000 to $45,000 a year aren’t eligible for overtime and can be forced to work 50, 60, or even 70 hours a week for no extra pay.

In 2016, the U.S. Department of Labor updated the overtime salary threshold to $47,476 a year—a moderate increase that would not even have fully restored overtime to the 62 percent of salaried workers who used to receive it.[5]

But a group of 21 state attorneys general, including Ohio’s Mike DeWine, sued and blocked this middle-class pay raise for their own constituents.[6]

While legal experts and even the Trump Administration believed the court’s ruling was erroneous and was likely to be reversed on appeal,[7] the administration announced in 2017 that the U.S. Department of Labor would rewrite the blocked overtime rule, most likely rolling back this long overdue pay raise and replacing it with weaker protections for fewer workers.[8] In September 2018, the Trump Labor Department scheduled a series of “listening sessions” as part of this effort to revise the rule and substitute weaker protections for fewer workers.[9]

Despite the rollback of the overtime restoration by DeWine, employer surveys show that 50 percent or more of national companies, including major retailers, restaurant chains, and banks, have already adopted the higher, updated overtime standards and adjusted their pay scales.[10] That shows that restoring overtime pay is economically realistic and would not entail a burdensome transition for businesses.

 

  1. The Impact of the Blocked Overtime Pay Restoration in Ohio—and the Benefits of Finally Delivering It

In this report we use state-level data available from the Economic Policy Institute, the Bureau of Labor Statistics, and the U.S. Census Bureau to analyze for each county across Ohio how many workers lost overtime pay as a result of DeWine’s blocking the U.S. Labor Department’s overtime pay restoration—and how many would regain those protections if Ohio’s governor and legislature act to deliver this long overdue raise.

As summarized in Table 1, the data show that a total of 327,000 workers across Ohio lost overtime pay as a result of the DeWine lawsuit.

OHIO Workers Who Lost Stronger Overtime Pay Protections:

327,063

Workers in every county across the state lost overtime protections. The largest impacts were 37,000 workers in Franklin County, 34,000 in Cuyahoga County, and 22,000 in Hamilton County. Other major impacts include 17,000 in Montgomery County, 16,000 workers in Summit County, 13,000 in Lucas County, and 13,000 in Stark County. See Table 1.

A typical worker who lost out on expanded overtime pay was an assistant manager at a big-box retail store or a restaurant chain who earns $25,000 to $45,000 a year. Other affected workers include low-level, low-paid managers at banks, health insurance companies, and a wide range of other types of businesses.

These workers, of which there are many thousands in Ohio, would have had overtime pay restored under the 2016 U.S. Labor Department expansion if DeWine had not blocked it in court.

As Table 2 details, as a result, this year and every year Ohio workers are losing $42 million in overtime raises. That’s $42 million in badly needed higher pay that workers across the state are losing ever year because of the lawsuit brought by DeWine to block the overtime raise.

That figure for total lost pay combines projections for two types of lost raises.  The first is the total of estimated unpaid overtime hours being worked each year by workers who would have been covered under the updated overtime protections.  The second part consists of estimated raises for workers whose employers would likely have raised their salaries up to the level of the new overtime threshold in order to keep them exempt from overtime requirements.

 

  1. Ohio’s Governor and Legislature Should Follow the Lead of Other States and Act Quickly to Deliver the Long Overdue Middle-Class Overtime Raise

In other states, including Pennsylvania, Washington State, California and New York, governors and state legislatures are responding to the blocked federal overtime pay expansion by acting under state law to deliver this raise. For example, Pennsylvania Governor Tom Wolf[11] and Washington State Governor Jay Inslee[12] this year both directed their state labor departments to update their overtime regulations to expand overtime pay—a process that is now underway in both states. California’s overtime salary threshold is already in the process of increasing to $62,400 a year by 2022.[13] And New York’s overtime salary threshold is increasing to $58,500 a year by late 2021 in the suburbs and by late 2018 in New York City, and by a date still to be determined in the reminder of the state.[14]

Legislation was introduced this session in the Ohio legislature calling for restoring overtime pay.[15] Ohio’s governor and legislature should follow those states’ lead and act quickly to deliver this badly needed overtime raise for the state’s workers.

Past polling found that Ohio voters support an overtime pay expansion by an overwhelming 80 to 14 percent margin.[16]

Updating Ohio’s overtime rules would finally deliver this long overdue raise for 327,000 or more middle-class workers across the state.

 

Tables

 

 

Appendix: About the Data

The analysis in this report was prepared with data available from the Economic Policy Institute (EPI), and draws on state-level analyses by EPI of the impact of the 2016 U.S. Department of Labor overtime raise. Beginning with EPI’s estimates of statewide worker impact and its estimates of overtime pay lost annually, the analysis then used data from the Bureau of Labor Statistics’ Quarterly Census of Employment and Wages and the Current Population Survey to update those estimates to the present, and to estimate county-level impacts.

 

Endnotes

[1]              Economic Policy Institute, What’s at stake in the states if the 2016 federal raise to the overtime pay threshold is not preserved—and what states can do about it (Nov. 15, 2017), available at: https://www.epi.org/publication/whats-at-stake-in-the-states-if-the-2016-federal-raise-to-the-overtime-pay-threshold-is-not-preserved/

[2]            “In U.S., wage growth is being wiped out entirely by inflation,” Washington Post (August 10, 2018), available at: https://www.washingtonpost.com/business/2018/08/10/america-wage-growth-is-getting-wiped-out-entirely-by-inflation/?utm_term=.364004afa05d

[3]           Economic Policy Institute, What’s at stake in the states if the 2016 federal raise to the overtime pay threshold is not preserved—and what states can do about it

[4]           Ibid.

[5] “White Increases Overtime Eligibility by Millions,” New York Times (May 17, 2018), available at: https://www.nytimes.com/2016/05/18/business/white-house-increases-overtime-eligibility-by-millions.html

[6]            “Ohio, Ky. and other states challenge US on OT rule,” Cincinnati Enquirer (Sept. 16, 2016), available at: https://www.cincinnati.com/story/money/2016/09/22/ohio-ky-and-other-states-challenge-us-ot-rule/90837396/

[7]           “Labor Department to Appeal Court Ruling Striking Down Obama-Era Overtime-Pay Rule; Trump administration remains likely to significantly change regulations,” Wall Street Journal (Oct. 27, 2017), available at: https://www.wsj.com/articles/labor-department-to-appeal-court-ruling-striking-down-obama-era-overtime-rule-1509141625 See also Brief for Defendant-Appellant, Nevada v. U.S. Dep’t of Lab. No. 16-41606 (5th Cir. June 30, 2017).

[8]            ”Labor Department to Start Process of Revising Overtime Rule,” Wall Street Journal (July 25, 2017), available at: https://www.wsj.com/articles/labor-department-to-start-process-of-revising-overtime-rule-1501002130?mod=article_inline

[9]            U.S. Department of Labor, “White Collar Exemption Regulations; Public Listening Sessions,” 83 Federal Register 43825 (Aug. 28, 2018), available at: https://www.federalregister.gov/documents/2018/08/28/2018-18649/white-collar-exemption-regulations-public-listening-sessions

[10]         “The State and Fate of Overtime, ComplianceHR (Oct. 27, 2017), available at: http://event.lvl3.on24.com/event/15/06/73/3/rt/1/documents/resourceList1507125242509/web__chr__1004__final.pdf

[11]          “Pa. proposal would boost overtime for half a million workers,” Philadelphia Inquirer (June 26, 2018), available at: http://www2.philly.com/philly/blogs/inq-phillydeals/overtime-labor-employment-trump-wolf-pennsylvania-overtime-20180626.html

[12]         Washington State Dep’t of Labor & Industries, Overtime EAP Rulemaking, available at: https://lni.us.engagementhq.com/learn-about-eap-exemptions

[13]         “California’s Exempt Salary Threshold Will Rise Regardless of Blocked Overtime Rule,” Society for Human Resource Management (Dec. 15, 2016), available at:  https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/overtime-california-employers.aspx

[14]          New York’s overtime salary threshold for the Executive and Administrative Exemption is increasing to $1,125 a week, which is $58,500 a year. See New York State Department of Labor, Miscellaneous Industry Wage Order Summary, available at: https://labor.ny.gov/formsdocs/wp/Part142.pdf ; New York State Department of Labor, Hospitality Industry Wage Order Summary, available at: https://labor.ny.gov/formsdocs/wp/Part146.pdf

[15]         “State Lawmakers, Policy Experts Urge Action On Overtime Pay, Call Out GOP Obstruction,” Ohio House of Representatives (April 3, 2018), available at: http://www.ohiohouse.gov/brigid-kelly/press/state-lawmakers-policy-experts-urge-action-on-overtime-pay-call-out-gop-obstruction

[16]         Public Policy Polling, Ohio Survey Results (Aug. 26-28, 2016), available at: http://nelpaction.org/wp-content/uploads/2018/09/Ohio-Public-Policy-Survey-Results-Aug-2016.pdf

 

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